Logan v. Numbers Cabaret Ltd. (Hamburger Mary’s), 2016 BCSC 1473 (CanLII)
The two plaintiffs had worked as a cook and waitress, respectively, for a known burger restaurant for 18 years. The restaurant closed for renovations in June 2015 that did not go as planned, and it remained closed until sometime well into 2016. The plaintiffs’ employment was never formally terminated. By the end of the summer 2015, however, it became clear that there was no prospect that the restaurant would re-open anytime soon. In October 2015, they commenced an action for severance.
The Court found that 14 months was the appropriate notice in the circumstances having regard to the nature of their jobs, their length of service, and their respective ages.
With respect to mitigation, the Court found: “They have not acted reasonably. Instead of continually and assiduously applying themselves to find employment, [the plaintiffs] .… their efforts to look for work began only recently, …. and even so, those efforts have been so minimal that they cannot be said to meet their duty.”
The Court went on: “I disagree that the plaintiffs’ failure to discharge their duty is of no consequence unless and until Cabaret proves that suitable employment was to be found. ….. In other words, the onus is on the former employer to prove that had the employee done more, they would have been successful in obtaining employment (see, e.g. Szczypiorkowski v. Coast Capital Savings Credit Union, 2011 BCSC 1376 (CanLII) at paras. 90-91). …”
In any event, there was “some” evidence before the Court, which was admitted and, “which is comprised of newspaper articles and Statistics Canada data (the latter post-dates the end of the 14 month notice period).”
In the result, the plaintiffs’ damages were reduced by some 7 months.